State Farm offers $0, bad faith case against State Farm is next

Kevin Seiferheld, an excellent trial lawyer at Michigan Auto Law, recovered a $1.485 million jury verdict for his client in Macomb County. What is notable about this case is that the insurance company for the defendant, State Farm, offered $0 – that’s right – $0.

Why? I see a couple reasons for this (that is, besides the usual reasons why I never recommend State Farm to my own clients). State Farm uses TEACH, which is claims software very similar to the Colossus program used by Allstate. Without sounding as ominous as Colossus, TEACH is every bit as nasty.

The insurance software program greatly reduces the value of low vehicle damage cases. But State Farm, being State Farm, took it a step further and offered $0 for settlement.

But Kevin’s client, Vikin Hannosh, was seriously hurt. The car accident occurred as a rear-end crash at a red light and Mr. Hannosh sustained a lower back injury. At age 47, this disc herniation later required surgery.

Kevin’s trial is a prime example of how some auto insurance companies in Michigan often refuse to accept any responsibility for car accident victims. Why should they, when Michigan has no punitive damages to punish insurance companies for egregious behavior, no consumer protection act that can be used to protect consumers when insurance companies ignore valid claims, and a bad faith law that is a shadow of the bad faith laws that most other states have?

In Kevin Seiferheld’s case, the insurance defense lawyers for State Farm admitted fault, and defended the case on injuries and proximate cause only. The State Farm insured had a $100,000 liability policy limit.

Due to the severity of Mr. Hannosh’s injuries, the case evaluation (the mandatory mediation process that all personal injury cases are required to go through under Michigan law) was $100,000. Yet at the time of trial, $0 was offered. In other words, the insurance company pushed the case to trial, refusing to make any honest or good faith offer to Mr. Hannosh.

Instead, they chose to fight the case on the fiction that a low vehicle damage car accident case could not cause an injury, despite this being disproved in the scientific and medical journals for decades.

As Dr. Michael Freeman, a forensic epidemiologist and Professor of Epidemiology at the Oregon Health and Science University School of Medicine, writes:

For years, minimal damage rear impact collision injury cases have been defended based on the fallacious premise that it can be reasonably argued that an injury from such a crash would not be expected and thus probably didn’t really happen. The logic then evolved into support for the assertion that any claim of injury from such a crash is not just mistaken but also probably dishonest. This “MIST” or minor impact soft tissue defense was popularized among insurers by Allstate in the 1990s when they hired McKinsey Corporation to redesign their claims handling processes. One of the ways that the defense argues that minimal damage = no injury is with an expert engineer or biomechanist. This is a topic I have discussed here before. The other way they introduce the concept is through juror speculation and misperception, by showing the photos of the vehicle damage and asking the jury to use their “common sense” to infer that what they see in the photos allows them to disregard the testimony of the treating physicians. This ultimately deceptive ploy is remarkably effective, and can be difficult to counter without some careful thought.

For this reason, I suggest the adoption of a New Rule, which is that if defense counsel asks a jury to rely on their “common sense” to draw an inference about causation, that the requisite knowledge for the common sense inference not require expert testimony and juror speculation. (My apologies to Bill Maher, who came up with New Rules long before me, but I’m pretty sure he didn’t come up with this one).

What can a lay person infer from a picture of a car that has been in a crash? What are lay people asked to infer by the defense from a picture of a car? Let’s start out with what the average person can reasonably take away from a picture of a car with a lot of damage.

Take a look at the picture below:

What common sense conclusions could the average juror draw from the picture?

1. there was a big crash
2. it mostly affected the passenger side
3. it makes common sense that a passenger would be injured, and potentially seriously injured

If confronted with medical testimony that a plaintiff who was on the passenger side was seriously injured, the photograph would be supportive of the medical testimony. No juror would need an understanding of vehicle construction, crash reconstruction, biomechanics, or medicine to reasonably infer from the photograph that a doctor’s testimony that the plaintiff suffered a head injury is reasonable, and even expected.

Moreover, the photograph would never be used as a basis for the juror to ignore expert testimony of injury causation, unless the testimony was that there was no way the injury resulted from the crash.

Now, take a look at the minimal damage photograph below:

The defense would use the photo to ask jurors to draw the “common sense” conclusion that the crash that caused the scratched bumpers could not have injured the plaintiff, despite the expert testimony by the plaintiff’s treating physicians that the crash was the cause of the injuries.

What reasonable common sense conclusions could the average juror draw from such a picture?

1. The crash was from the rear
2. It was not a very big crash
3. There is no obvious visible damage beyond some scratches to the bumper

If the defense asked the jurors to conclude that what they can infer from the picture allows them to disregard the physician testimony that the plaintiff was injured from the crash, what critical information is missing? Consider the following:

1. Knowing that the crash was from the rear doesn’t meant that the crash didn’t cause injury (no expert testimony to establish this as fact)
2. Knowing that it was not a very big crash doesn’t tell how small of a crash it was. All the jury knows is that there was a crash. Was it a 5 mph, 8 mph, 12 mph, 15 mph crash? Would knowing this information tell the juror whether the physician testimony was wrong, as a matter of common sense? (no, all conclusions would require expert testimony)
3. There is no visible damage beyond scratches. Or is there? Is the trunk aligned on the right the same as on the left? Is the bumper position, relative to the vehicle body, the same as it was prior to the crash? Or is the bumper pushed in a half inch? Is there damage under the bumper cover? And of course, the most important question: how big of a crash (5, 8, 12, or 15 mph, etc.) can the car withstand and still show the same amount of damage? (these are also all conclusions that require expert knowledge)

The average juror is unequipped with the expert knowledge to answer any of these questions, and must speculate about all of these important factors in order to do what the defense is asking of them. The defense may claim that the doctor is also not an expert in crash reconstruction and vehicle dynamics etc. Doctors also aren’t (universally) experts in toxicology, the physics of falls, the biomechanics of head trauma, the pharmacologic actions of cardiotoxic drugs, and a variety of other injury mechanisms, yet they are tasked with determining injury causation for not only these but all other exposures that can and do injure people.

Is a lay person sufficiently knowledgeable to rely on their own “common sense” to ignore the expert testimony of the treating physician, in the absence of any contradictory expert evidence?

Ask yourself the following; if the treating doctor had prescribed 20 mg of vicodin every 4 hours for the plaintiff, could the jury be asked to conclude that, as a matter of common sense, this was too much pain killer? Of course not. The same principle holds true for any kind of injury resulting from any kind of crash, and the expert conclusion that the crash caused the injury.

Doesn’t the doctor’s unique experience taking histories from people who have been injured in crashes make him an expert on the matter? While the jury has the prerogative to ignore expert testimony because they don’t find the expert credible, can they be asked by the defense to draw such a conclusion about an issue requiring expert knowledge based purely on the speculation that “based on what I see in these photos it just doesn’t seem like this crash could cause all these injuries”?

Ultimately, this issue may be most effectively addressed with motion practice. The defense cannot ask jurors to speculate about what a photograph of a vehicle means with regard to injury causation if there isn’t also expert testimony that supports the conclusion suggested by the defense. Jurors don’t know how cars are constructed, how body parts are normally aligned, or how two vehicles came together in a crash in order to result in the minimal damage seen in the photographs the defense produces of “evidence” of no injury. From my perspective the most ridiculous aspect of this practice remains the following: unless it is an established certainty that a crash couldn’t cause an injury, even knowing as a fact that an injury was merely unlikely in a certain crash in no way can be used as a basis for concluding that an injury didn’t occur. Thus, any conclusion by the jury that the treating physician isn’t credible because he said that the injury was caused by the crash is, by definition, speculative. This makes the defense call for the jury to draw such a conclusion improper.

This “new rule” means that photographs of substantial damage that are used to support a physician finding of injury are in, and while photos of minimal damage are also in (in my experience, most judges won’t keep photos out), the defense can’t ask the jury to draw the speculative conclusion that the doctor’s expert conclusion is wrong.

Some of the most successful low damage crash cases that I have seen are those in which the plaintiff was the first to show the photographs, admit that most people wouldn’t be hurt in such a collision, and tell the jury exactly how the defense was going to misuse this fact to ask them to speculate that somehow this means that the plaintiff wasn’t hurt. My favorite way to illustrate the fallacy of this approach is with the polar opposite scenario; which is if a crash was very severe and 99 out of 100 people were sure to be killed in such a crash, why wouldn’t we try to bury the 1 survivor?

Before his car crash, Mr. Hannosh had worked as a restaurant manager in Hazel Park. He has been unable to return to work since the accident.

This case was tried before a jury in Macomb County Circuit Court. The verdict was November 20, 2012.

This case, and my own $2.5 million dollar jury verdict on a zero vehicle damage case, shows that juries are not as stupid as the insurance companies believe. Yes, insurance companies get away with this defense, often more than they should. But when the science behind why an occupant of a car can be seriously injured – or even killed – when the car itself is not badly damaged is explained to juries, then these low impact defense cases can and should be won.

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